259 F.2d 500 (8th Cir. 1958), 15842, Rosenbloom v. United States

Docket Nº:15842.
Citation:259 F.2d 500
Party Name:Solomon P. ROSENBLOOM, Also Known as Sol Rosenbloom, Appellant, v. UNITED STATES of America, Appellee.
Case Date:October 15, 1958
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 500

259 F.2d 500 (8th Cir. 1958)

Solomon P. ROSENBLOOM, Also Known as Sol Rosenbloom, Appellant,

v.

UNITED STATES of America, Appellee.

No. 15842.

United States Court of Appeals, Eighth Circuit.

October 15, 1958

Page 501

Israel Treiman, St. Louis, Mo. (Shifrin, Treiman, Agatstein & Schermer, St. Louis, Mo., on the brief with him), for appellant.

W. Francis Murrell, Asst. U.S. Atty., St. Louis, Mo. (Harry Richards, U.S. Atty., Wayne H. Bigler, Jr., and John A. Newton, Asst. U.S. Attys., St. Louis, Mo., on the brief), for appellee.

Before GARDNER, Chief Judge, and VOGEL and MATTHES, Circuit Judges.

GARDNER, Chief Judge.

Appellant was indicted, tried and convicted on an indictment charging him with violation of the Internal Revenue Act. The indictment under which he was convicted contained six counts. In Counts I and II the indictment charged appellant with filing fraudulent joint income tax returns for himself and his wife for the calendar years 1950 and 1951. Counts III and IV charged appellant with filing false partnership returns for the Rosenbloom Monument Company for the same two years and Counts V and VI charged him with filing false joint returns for his brother and wife for the same two years. We shall hereinafter refer to appellant as defendant.

Defendant, his brother, his two sons and his brother's son constituted a family partnership and at the times here involved were engaged in the sale of headstones and markers for burial plots and were operating under the trade name of Rosenbloom Monument Company. Defendant and his brother had been operating the business for some thirty-five years and in the years in question were assisted by defendant's two sons and his brother's one son. The five were treated as equal partners on the partnership income tax returns. Defendant ran the office, supervised the bookkeeping and made out the partnership and personal income tax returns for the years 1950 and 1951. He had taken a nine months business college course which included elementary bookkeeping. The chief source of income of the members of this family partnership and their wives was from the Rosenbloom Monument Company.

Page 502

The books of the company, kept under the supervision and direction of defendant, indicated that for the years involved the partnership realized no net income. However, the income tax returns for those years as prepared by the defendant showed a taxable net income of $25, 534.83 in 1950 and $26, 750.21 in 1951. The evidence of the government showed that the taxable income for these years was $49, 294.88 in 1950 and $53, 082 in 1951. There is no material conflict in the evidence as to these primary facts. The discrepancy between the amounts shown as taxable income and the actual taxable income is largely accounted for by the fact that defendant siphoned off the income of the company by paying the sum of $51, 665.00 in 1950 to the five partners and charging it to 'selling expense', and in 1951 paying the sum of $53, 000 to the partners and likewise charging it to 'selling expense'. Defendant admitted that in preparing the partnership tax returns he padded and enlarged legitimate items of company expense to the extent of almost $25, 000 in each of the two years involved. The evidence will be further developed during the course of this opinion.

At the close of the government's evidence in chief defendant moved for judgment of acquittal, which motion was denied. He then introduced evidence on his own behalf, following which the Court submitted the case to the jury on instructions to which...

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